Appeal of MICHAEL M. SANDS - P. S. Docket No. POB 98-172

In the Matter of the Petition by	)  February 11, 1999
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MICHAEL M. SANDS			)
3864 Lyell Road				)
Rochester, NY  14606-4402		)
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					)
Termination of Post Office Box Service	)
for P.O. Box 1, Rochester, NY		)  P. S. Docket No. POB 98-172

APPEARANCE FOR PETITIONER:		Michael M. Sands
					3864 Lyell Road
					Rochester, NY  14606-4402

APPEARANCE FOR RESPONDENT:		Janessa L. Grady, Esq.
					Civil Practice Section
					United States Postal Service
					Washington, DC  20260-1127

POSTAL SERVICE DECISION

Petitioner, Michael M. Sands, has filed an appeal from an Initial Decision of an Administrative Law Judge upholding the determination of the Rochester, New York Postmaster to close P.O. Box 1. Petitioner contends that his post office box should not have been closed and that he is being mistreated because of management wrongdoing at the Rochester postal facility.

In the Initial Decision the Administrative Law Judge found that the Postmaster acted within his authority under Domestic Mail Manual (DMM) §D910.8.2 to terminate Petitioner's post office box service. Section D910.8.2 gives a postmaster the authority to terminate box service if a customer "conducts himself...in a violent, threatening, or otherwise abusive manner on postal premises."^1/ The basis for the Postmaster's determination was a conflict between Petitioner and one of his co-workers on March 2, 1998. The Administrative Law Judge found that although the specific details provided by Petitioner and his co-worker differ, Petitioner never denied the basic claim that he followed the co-worker into the work area, came in close physical proximity to him, and shouted at him.^2/ The Administrative Law Judge also considered Petitioner's history of behavior problems in dealing with supervisors and other co-workers^3/ in reaching his decision that Petitioner's behavior was threatening and abusive within the meaning of DMM §D910.8.2 and was sufficient reason for the Postmaster to terminate Petitioner's post office box service.

On appeal, Petitioner contends that his actions during the March 2 incident did not rise to the level of violent, threatening or abusive behavior.^4/ According to Petitioner, he never swore during the incident or had any physical contact with the co-worker. Regardless of the exact nature of the incident, Petitioner has never denied that it did in fact occur. There is sufficient evidence present in the record to support the Administrative Law Judge’s conclusion that Petitioner acted in a threatening or abusive manner by disrupting the workplace on that occasion and others.^5/

Petitioner has not shown that the Postmaster's decision to close P.O. Box 1 was improper or that the Administrative Law Judge's conclusion that Petitioner’s behavior was abusive within the meaning of DMM §D910.8.2 is not supported by the record. Accordingly, Petitioner's appeal is denied and the Administrative Law Judge's Initial Decision upholding the termination of service to P.O. Box 1 is affirmed.

				James A. Cohen
				Judicial Officer

1. The term "abusive" was omitted from the Domestic Mail Manual applicable to this appeal (DMM 53, January 1, 1998). As was held by the Administrative Law Judge, the omission appears to have been an inadvertent printing error and not a change to the controlling standard. The language was included in the Postal Bulletin notice (PB 21,946, May 22, 1997) and in the Federal Register notices of the changes (62 Fed. Reg. 26,090 (May 12, 1997) and 62 Fed. Reg. 31,513 (June 10, 1997)). The Administrative Law Judge's determination is further supported by the inclusion of the term abusive in the most current print version of the Domestic Mail Manual (DMM 54, January 10, 1999).

2. Initial Decision at 6.

3. The evidence relied on by the Administrative Law Judge was submitted by Petitioner. See Petitioner Ex. 6.

4. Petitioner's appeal reiterates his allegations of improper conduct by management and co-workers. However, the purpose of a decision under Part 958 is to determine the propriety of the decision to terminate Petitioner's post office box service. Petitioner's allegations of improper conduct and arguments about the general working atmosphere at the Downtown Rochester Station are not relevant to these proceedings.

5. Petitioner argues on appeal that the Administrative Law Judge should not have relied on his Exhibit No. 6, which includes interviews with Downtown Station employees regarding their concerns about working with Petitioner, because the statements are unsigned and hearsay. It is undisputed that hearsay evidence may be admissible in administrative proceedings, see e.g., Morelli v. United States, 177 Ct. Cl. 848, 853 (1966); Jacobowitz v. United States, 424 F.2d 555, 559 (Ct. Cl. 1970); Reil v. United States, 456 F.2d 777, 780 (Ct. Cl. 1972); Project Prayer, P.S. Docket No. 8/68 (P.S.D. May 29, 1981), at 6. Hearsay can also constitute substantial evidence if, as here, it is sufficiently convincing to a reasonable mind. McKay v. United States, 500 F.2d 525, 528 (Ct. Cl. 1974). Additionally, the March 2, 1998, incident alone would be a sufficient reason for the Postmaster to terminate Petitioner's post office box service for threatening or abusive behavior.